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PITTSBURGH OUTDOOR ADVERTISING v. ZONING HEARING BOARD MUNICIPALITY MONROEVILLE (12/16/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 16, 1982.

PITTSBURGH OUTDOOR ADVERTISING, INC., APPELLANT
v.
ZONING HEARING BOARD OF THE MUNICIPALITY OF MONROEVILLE, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Pittsburgh Outdoor Advertising, Inc. v. Zoning Hearing Board of the Municipality of Monroeville, No. S.A. 773 of 1978.

COUNSEL

Victor R. Delle Donne, Baskin and Sears, P.C., for appellant.

Lee R. Golden, with him John D. Finnegan and John M. Silvestri, for appellee.

President Judge Crumlish, Jr. and Judges Rogers, Blatt, MacPhail and Doyle. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 70 Pa. Commw. Page 396]

The Allegheny County Common Pleas Court affirmed a Monroeville Zoning Hearing Board (Board) order directing Pittsburgh Outdoor Advertising, Inc. (Pittsburgh), to remove a billboard. Pittsburgh appeals. We vacate and remand.

Pittsburgh purchased a thirty-two-acre tract in 1968.*fn1 The sign in question had been on the property since at least 1960.*fn2 After Pittsburgh applied for a use variance to construct an additional sign on the property,*fn3 the zoning officer ordered Pittsburgh to

[ 70 Pa. Commw. Page 397]

    remove the existing sign, as a non-conforming use, it violated the 1971 ordinance*fn4 which required that all non-conforming signs be removed within five years of the effective date of the ordinance. Pittsburgh appealed to the Board and raised the issue of the constitutionality of the ordinance. At the hearing, the Board found that the sign was illegal,*fn5 rather than non-conforming, thus avoiding the constitutional issue. The common pleas court, without taking additional evidence, held that Pittsburgh had failed to prove the existence of a legal non-conforming use.

The Board first determined the sign to be illegal during the hearing on Pittsburgh's appeal. Pittsburgh, having been informed by Monroeville's zoning officer that the sign constituted a non-conforming use,*fn6 was not on notice prior to the hearing that it would have to prove the sign's legal non-conforming use status. Also in dispute at the hearing was whether the 1951 ordinance or the 1962 ordinance

[ 70 Pa. Commw. Page 398]

    would apply to the sign,*fn7 an issue not decided below. Moreover, if the 1951 ordinance is found to apply (thereby establishing the sign's status as illegal), the issue of whether an ilegal use becomes a variance by estoppel*fn8 must be addressed.

Our scope of review where the trial court takes no additional evidence is limited to the determination of whether the Board abused its discretion or committed an error of law. Appeal of Buckingham Developers, Inc., 61 Pa. Commonwealth Ct. 408, 433 A.2d 931 (1981). Here, the Board erred by considering an issue not raised until the hearing, thus depriving Pittsburgh of the opportunity to prepare its position. We now vacate the order of the common pleas court and remand for proceedings not inconsistent with this Opinion. If the use is found to be non-conforming, the constitutionality of the 1971 ordinance must then be determined.*fn9

We vacate and remand.

[ 70 Pa. Commw. Page 399]

Order

The Allegheny County Common Pleas Court order, No. S.A. 773 of 1978 (Zoning Appeal), dated October 12, 1980, is hereby vacated and remanded for proceedings not inconsistent with this Opinion.

Disposition

Vacated and remanded.


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